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Tuesday, July 28, 2009

Dear Friends: I am proud to announce that Patricia A. Shiu, vice president for Programs at the Legal Aid Society-Employment Law Center (LAS-ELC) has accepted a leadership position with the United States Department of Labor as the director of the Office of Federal Contract Compliance Programs (OFCCP). The OFCCP is responsible for enforcing Executive Order 11246 and other laws which prohibit discrimination and require affirmative action by businesses contracting with the federal government. Ms. Shiu has dedicated her twenty-five year career at the LAS-ELC to strengthening and enforcing the rights of low-wage workers and their families. We are extremely proud of Ms. Shiu's long list of accomplishments and the major contributions she has made to the development of employment law and gender equity. We know Ms. Shiu will serve our country and the cause of justice with the professionalism, commitment and integrity that have consistently marked her years of service to her clients and their communities and to the rule of law.

Some biographical information regarding Patricia A. Shiu:Patricia A. Shiu is Vice President of Programs at the Employment Law Center, a project of the Legal Aid Society of San Francisco. Ms. Shiu joined the Employment Law Center in 1983 where she focuses primarily on employment discrimination, including sex and race-based discrimination. She also represents workers in family and medical leave cases. Ms. Shiu is the Director of the Society’s Work and Family Project and advocated for the passage of California’s Family Rights Act and its regulations. Ms. Shiu was appointed to the Civil Rights Reviewing Authority for the Department of Education in 1993 by Secretary Richard Riley. She is a former member of the Executive Board of the National Employment Lawyers Association and served as one of its Vice Presidents. Ms. Shiu is a graduate of the University of San Francisco School of Law. https://www.nela.org/NELA/index.cfm?showfullpage=1&event=showAppPage&pg=semwebCatalog&panel=browse&ft=SWOD&bb=aut&aut=3351

Pat Shiu, Vice President of Programs and Director of the Gender Equality Program was honored on March 18 by the Asian American Bar Association with its Joe Morozumi Lifetime Achievement Award. The Joe Morozumi Award recognizes Asian American attorneys that embody the "spirit of uncomprising legal advocacy in matters of conscience," according to award founder, Dale Minami. Pat has devoted her remarkable public interest career of 21 years to ensuring that poor women, particularly immigrants, women of color, single mothers, and those who are disabled are treated legally, fairly and with dignity. Recently her cases have included a challenge to discrimination and harassment in police departments and other nontraditional workplaces; the denial of paid family to a worker who son was dying of AIDS and another whose mother was terminally ill; and the payment of lesser wages to women working in jobs just above the minimum wage. A longtime authority on the workplace rights of domestic violence survivors, Pat also directs the Domestic Violence and Employment Project. She recently successfully secured a settlement on behalf of a domestic violence survivor whose employer refused to transfer her to a work site away from the reach of her abuser, who was also her husband and co-worker. http://employmentlawcenter.org/arch-staffclayaward.html

Monday, July 27, 2009

(CNSNews.com) - President Barack Obama on Friday announced that the United States will sign the United Nations Convention on the Rights of Persons with Disabilities, a treaty that elevates disability beyond a health and social welfare issue to a human rights issue. "Disability rights aren't just civil rights to be enforced here at home. They are universal rights to be recognized and promoted around the world," the president said at a White House ceremony. All treaties require Senate ratification. Adopted by the U.N. General Assembly in December 2006, the lengthy treaty describes the human rights of persons with disabilities, including the right to equality under the law; the right to live in the community; the right to education, health, and work; and the right to participate in political, public and cultural life. The treaty also discusses disabled people's "right" to health care, saying that parties to the treaty "recognize that persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability."

Countries signing on to the treaty agree to:-- Provide the disabled with the same “range, quality and standard of free or affordable health care” as provided to other people, including in the area of sexual and reproductive health;-- Provide health services needed by the disabled specifically because of their disabilities, including early identification and intervention as well as services designed to minimize and prevent further disabilities;

Statement by U.S. Secretary of Labor Hilda L. Solis on 19th anniversary of Americans with Disabilities Act

WASHINGTON — Secretary of Labor Hilda L. Solis today issued the following statement regarding the 19th anniversary of the Americans with Disabilities Act of 1990 (ADA):"July 26 marks the 19th anniversary of the Americans with Disabilities Act, landmark legislation designed to prevent discrimination and enable individuals with disabilities to fully participate in all aspects of society."The ADA's provisions include the right to seek, obtain, pursue and maintain employment without being hampered by physical or attitudinal barriers. I believe that having a job is a civil right. Those who are qualified for and want to work should not be denied that right because of an inaccessible building or an outdated set of assumptions about what they can or cannot do."In nearly two decades, our nation has come a long way in recognizing the talents and contributions of more than 50 million Americans with disabilities. Unfortunately, the employment rate for people with disabilities in this country is still unacceptably low. Only 22.6 percent of individuals with disabilities are participating in the labor force, compared to 71.9 percent of people with no disability. And although the federal government strives to be a model employer, in actuality the number of people with disabilities in the federal workforce has decreased over the past decade. This trend must be reversed, and the Department of Labor will be a leader in the effort."I am pleased to welcome the Honorable Kathy Martinez as the Labor Department's new assistant secretary for the Office of Disability Employment Policy. Kathy's years of leadership as an internationally recognized advocate for people with disabilities, as well as her expertise in diversity and gender issues, make her a perfect fit. Her extensive background includes serving as executive director for the World Institute on Disability and as a board member of the U.S. Institute of Peace."The Department of Labor's Office of Disability Employment Policy has an abundance of resources to assist employers, workers and others. Information is available on the department's Web site at http://www.dol.gov/odep/."

Sunday, July 26, 2009

Being obnoxious isn’t a crime.As we reflect on the arc of civil rights dramas from Jim Crow to Jim Crowley, my friend John Timoney, the police chief of Miami, observes: “There’s a fine line between disorderly conduct and freedom of speech. It can get tough out there, but I tell my officers, ‘Don’t make matters worse by throwing handcuffs on someone. Bite your tongue and just leave.’ ”As the daughter of a police detective, I always prefer to side with the police. But this time, I’m struggling.No matter how odd or confrontational Henry Louis Gates Jr. was that afternoon, he should not have been arrested once Sergeant Crowley ascertained that the Harvard professor was in his own home.President Obama was right the first time, that the encounter had a stupid ending, and the second time, that both Gates and Crowley overreacted. His soothing assessment that two good people got snared in a bad moment seems on target.It escalated into a clash of egos — the hard-working white cop vs. the globe-trotting black scholar, the town vs. the gown, the Lowell Police Academy vs. the American Academy of Arts and Letters.Crowley told a Boston sports station that Gates “seemed very peculiar — even more so now that I know how educated he is.”Gates told his daughter Elizabeth in The Daily Beast: “He should have gotten out of there and said, ‘I’m sorry, sir, good luck. Loved your PBS series — check with you later!’ ”Gates told me Crowley was so “gruff” and unsolicitous “the hair on my neck stood up.” Crowley says Gates acted “put off” and “agitated.” But the strong guy with the gun has more control than the weak guy with the cane. An officer who teaches racial sensitivity should not have latched on to a technicality about neighbors — who seemed to be outnumbered by cops — getting “alarmed” by Gates’s “outburst.”From Shakespeare to Hitchcock, mistaken identity makes for a powerful narrative.

Saturday, July 25, 2009

The Washington PostBy Juan WilliamsSunday, July 26, 2009Affirmative action, age 45, is dead.

In 2003, after the Supreme Court limited race to one of many factors that could be considered in school admissions, Justice Sandra Day O'Connor predicted that affirmative action, born with the Civil Rights Act of 1964, had at most 25 more years to live. She was too optimistic.The court's recent 5 to 4 decision in Ricci v. DeStefano -- concluding that the city of New Haven, Conn., violated the rights of white firefighters when it threw out a promotions test because no blacks had passed it -- cut the last legal underpinnings for affirmative action. Without protection from reverse-discrimination lawsuits, virtually every instance of affirmative action can now be forever tied in a legal tangle that chokes the life out of it.It is a death that has come too early, as even the nation's latest unemployment numbers show. African Americans have close to double the joblessness of whites, while the unemployment rate among Latinos is a third higher than that of whites. In a nation that is rapidly becoming more racially diverse, these are destabilizing disparities in power and class. In the professional world, blacks and Hispanics make up a mere 4 percent to 6 percent of the nation's lawyers, doctors and engineers. These gaps are exacerbated by differences in education and income and, more important, by the history of government-enforced segregation that long denied African Americans entry into schools and the business world.So, why now? More often than not, it is the American left that gets lost in absurd fantasies about race in this country. They pretend there has been no progress in recent decades, even when they see the rise of a black middle class and witness the election of a mixed-race president and the likely confirmation of a Hispanic woman to the Supreme Court. But today, it is the right wing and its supporters on the high court who are making stuff up. They pretend that the nation is already so transformed that a colorblind America is a reality and that affirmative action is superfluous, so much so that white employees in a city fire department -- an arena long dominated by Irish and Italian Americans -- need help from the Supreme Court to get a promotion.This is a stark reversal of the Supreme Court's position in 1979, when it upheld a company hiring policy of "one black for one white" in United Steelworkers v. Weber. The Equal Employment Opportunity Commission then protected businesses from lawsuits from white employees if a company acted on an approved plan to reverse the exclusion of people of color in hiring or promotions.The Ricci decision blows apart that framework. Justice Ruth Bader Ginsburg was on target when she said the ruling did "untold" damage to civil rights laws intended to rectify past wrongs.

Friday, July 24, 2009

After a week of watching the full frontal race-carding of Republican senators in the Sotomayor confirmation hearings, I have decided that it is not the election of Barack Obama that the history books will mark as the end of the U.S. racial divisions as we know it. Instead, it will be these few weeks of entitled, privileged white men deciding to document and promote an "All-Race, All-the-Time" agenda to shut down this nomination the only way they know how. And it is not working. And their heads are exploding. Not just because the fish are swimming around the tried-and-true race bait...but perhaps because they truly cannot fathom that this Latina actually is wise. And capable. Or, worse, WISER. And MORE capable.My friend has coined the term "Sotomayor Dissonance Syndrome," or SDS, for this inability of the privileged to accept an historical "other" as a peer or superior. It's nothing new to us (or many of you). But it is remarkably, refreshingly new to watch it play out in full public view, beyond the privacy of the locker room, dining hall or board room. And imagine how good it will feel to finally see this tactic lose. AGAIN. In the same 12-month period. Let's skip the jump and talk about it.dmitcha's diary :: ::I got a link today on a list-serv to what I consider to be an ill-advised, ill-informed opinions piece from the New York Times about affirmative action and Sotomayor (Race in 2028). It flashed me back to my college stairwells, having endless arguments with students about policies they knew nothing about but were sure were secretly helping me and hurting their friends. Some of you know right now what I am talking about.Before I go into more detail about affirmative action and why today's NYT piece was so anachronistic and ridiculous and uninformed in my view...let me add one more remarkable and refreshing thing. For all of you rich or not rich, wildly UNentitled white men that I have dialogued with and read and followed since social media made it possible to know that you exist - this diary is not about you. In fact, it is in part a hat tip to you. Because mountains have moved in reading your words and your stories and your sense of self as part of the progressive community in the past two years plus of Obama-locity. Who knew you were out there in such droves? Some of you know right know who and what I am talking about. (Tipping the rest of my hat to BlackKos, Jack and Jill Politics and Derrick at RENWL for more mountain moving!)So now, I'd like to delve a bit into affirmative action, hoping to offer some foundation for reasoned discussion or private thought. This is not a legal opinion, just more information than many people I have encountered know about the affirmative action approach.WHAT IS AFFIRMATIVE ACTION? It's actually a catch-all phrase. It concerns federal, state and local government, and other institutional efforts, to redress past discrimination and/or effect increased or equal opportunities for historically underrepresented groups (women, people of color, the disabled, etc.). So it is not actually a single defined program; instead, it is an approach to hiring, admissions, promotions, etc. that institutions define for themselves, unless they are under the mandates of a federal consent decree.It's important to note that affirmative action does not currently assist gay Americans and civil rights laws do not yet legally protect them from discrimination.

Thursday, July 23, 2009

New York City used tests that discriminated against black and Hispanic applicants to the Fire Department and had little relation to firefighting, a federal judge in Brooklyn ruled on Wednesday, dealing a blow to the administration of Mayor Michael R. Bloomberg.“These examinations unfairly excluded hundreds of qualified people of color from the opportunity to serve as New York City firefighters,” wrote Judge Nicholas G. Garaufis of Federal District Court in Brooklyn, referring to two tests administered in 1999 and 2002.The ruling came in a lawsuit brought by the Justice Department in 2007 after a federal complaint by the Vulcan Society, an association of black firefighters, led to an investigation into the Fire Department’s hiring practices.The judge said he would determine later what remedies to require of the city. They could include payment of lost wages, retroactive seniority for some minority employees and affirmative action hiring. Noting that the court had ruled against the city in past decades in lawsuits brought over its hiring practices, Judge Garaufis wrote that even as the city’s black and Hispanic population had increased, “the overwhelmingly monochromatic composition of the F.D.N.Y. has stubbornly persisted.”Like firefighting forces in several other big cities, New York’s has remained disproportionately white, despite pressures and efforts to diversify. According to the city’s Law Department, at the end of May, roughly 3 percent of the 11,529 firefighters were black, and about 6 percent were Hispanic. Federal census estimates put each group at roughly 27 percent of the city’s population.“If there was any doubt that the city did have problems with its hiring process, it’s now been decided that in fact they do,” said Darius Charney of the Center for Constitutional Rights, one of the lawyers for the plaintiffs. “Now it’s hard for them to argue that they in fact are not discriminating.”

Wednesday, July 22, 2009

REMARKS BY THE PRESIDENT TO THE NAACP CENTENNIAL CONVENTIONHilton New York

New York, New York7:00 P.M. EDT

THE PRESIDENT: Thank you. What an extraordinary night, capping off an extraordinary week, capping off an extraordinary 100 years at the NAACP. (Applause.)So Chairman Bond, Brother Justice, I am so grateful to all of you for being here. It's just good to be among friends. (Applause.)It is an extraordinary honor to be here, in the city where the NAACP was formed, to mark its centennial. What we celebrate tonight is not simply the journey the NAACP has traveled, but the journey that we, as Americans, have traveled over the past 100 years. (Applause.)It's a journey that takes us back to a time before most of us were born, long before the Voting Rights Act, and the Civil Rights Act, Brown v. Board of Education; back to an America just a generation past slavery. It was a time when Jim Crow was a way of life; when lynchings were all too common; when race riots were shaking cities across a segregated land.It was in this America where an Atlanta scholar named W.E.B. Du Bois -- (applause) -- a man of towering intellect and a fierce passion for justice, sparked what became known as the Niagara movement; where reformers united, not by color, but by cause; where an association was born that would, as its charter says, promote equality and eradicate prejudice among citizens of the United States.From the beginning, these founders understood how change would come -- just as King and all the civil rights giants did later. They understood that unjust laws needed to be overturned; that legislation needed to be passed; and that Presidents needed to be pressured into action. They knew that the stain of slavery and the sin of segregation had to be lifted in the courtroom, and in the legislature, and in the hearts and the minds of Americans.They also knew that here, in America, change would have to come from the people. It would come from people protesting lynchings, rallying against violence, all those women who decided to walk instead of taking the bus, even though they were tired after a long day of doing somebody else's laundry, looking after somebody else's children. (Applause.) It would come from men and women of every age and faith, and every race and region -- taking Greyhounds on Freedom Rides; sitting down at Greensboro lunch counters; registering voters in rural Mississippi, knowing they would be harassed, knowing they would be beaten, knowing that some of them might never return.Because of what they did, we are a more perfect union. Because Jim Crow laws were overturned, black CEOs today run Fortune 500 companies. (Applause.) Because civil rights laws were passed, black mayors, black governors, and members of Congress served in places where they might once have been able [sic] not just to vote but even take a sip of water. And because ordinary people did such extraordinary things, because they made the civil rights movement their own, even though there may not be a plaque or their names might not be in the history books -- because of their efforts I made a little trip to Springfield, Illinois, a couple years ago -- (applause) -- where Lincoln once lived, and race riots once raged -- and began the journey that has led me to be here tonight as the 44th President of the United States of America. (Applause.)Because of them I stand here tonight, on the shoulders of giants. And I'm here to say thank you to those pioneers and thank you to the NAACP. (Applause.)And yet, even as we celebrate the remarkable achievements of the past 100 years; even as we inherit extraordinary progress that cannot be denied; even as we marvel at the courage and determination of so many plain folk -- we know that too many barriers still remain.

CNN.COMJuly 22, 2009Story Highlights :Judge found written test had "discriminatory effects," little to do with job of a firefighterJudge ruled that tests unfairly "excluded hundreds of qualified people of color"Lawsuit challenged that the exams discriminated against minorities

NEW YORK (CNN) -- A federal judge ruled Wednesday that the New York City Fire Department used recruitment exams that discriminated against African-American and Hispanic applicants.U.S. District Judge Nicholas Garaufis found that the written tests had "discriminatory effects and little relationship to the job of a firefighter." Garaufis also concluded that the "examinations unfairly excluded hundreds of qualified people of color from the opportunity to serve as New York City firefighters," thus, he said, constituting employment discrimination.The ruling came in a lawsuit filed by the U.S. Department of Justice against the city of New York, with the suit challenging whether the city's written fire-department exams from 1999 to 2007 disadvantaged would-be African-American and Hispanic firefighters.

Sonia Sotomayor’s nomination to the Supreme Court has exposed a deep-seeded bitterness in white America. From respected legal analysts like Jeffrey Rosen to incendiary conservatives like Pat Buchanan, this embittered segment of white America has tried to establish a parallel between Sotomayor’s qualifications and those of failed Bush appointee Harriett Miers. These persistent questions about Sotomayor’s qualifications, however, are largely rooted in white America’s automatic assumption that a successful non-White is nothing more than an affirmative action baby.Sonia Sotomayor would not be where she is today if Princeton University’s admissions office failed to see any value in diversifying its lily white student body. Racial minorities like Sonia Sotomayor and her contemporaries should be proud of initiating the ongoing struggle to integrate higher education. This march towards racial diversity does not overshadow the academic potential of college applicants. To suggest otherwise is preposterous and Sonia Sotomayor’s summa cum laude Bachleor’s Degree speaks louder to this than any written explanation I can articulate.Nonetheless, the preposterous suspicion of successful minorities persists. Last week, Pat Buchanan beat this drum for embittered white America on the Rachel Maddow Show. In his interview, Buchanan berated Sotomayor for a June 11th interview in which she told the New York Times that she was "a product of affirmative action" (http://www.nytimes.com/2009/06/11/us/politics/11judge.html). It was vintage Pat Buchanan. He reduced Sotomayor to an "affirmative action baby" and declared that Obama appointed her simply because she is a Latina.Men like Pat Buchanan, however, fail to recognize and appreciate the benefits that they have reaped from the college admissions process.

Whatever Pat Buchanan's reasons are for not liking Supreme Court nominee Sonia Sotomayor are his reasons, and most likely we're not going to change his mind.And frankly, this is America and he gets to say what he wants to say -- no matter how ignorant, dated, out of context, racist or stupid it is. But his latest tirade on MSNBC about affirmative action being the reason Sotomayor was chosen, all I can say is, "Wow!"To listen to a white Catholic male speak about how affirmative action is reverse discrimination frankly make me chuckle. After all, what does Buchanan know about discrimination? Nothing! I too was born into a white Catholic family and by the time I arrived in the world, we had already put a white Catholic in the White House -- and oddly enough, the first guy to use the term "affirmative action."It was President Kennedy that first used the term affirmative action in 1961. It was his way of reinforcing something our Declaration of Independence said -- all men are created equal. Oddly enough, it wasn't until 1967 that President Johnson included women into affirmative action.

For many, it was a startling portrait: the normally reserved Harvard University professor, Henry Louis Gates Jr., standing on his front porch in handcuffs, appearing to yell as police officers surrounded him. Yet those were the images that circulated Tuesday, as news of Gates’ controversial arrest – and the subsequent dropping of charges against him – circulated on Web sites and television.Stephen L. Carter, a Yale University law professor and novelist, felt like he was watching a scene unfold from one of his own books. Carter has written scholarly works along with bestsellers about the lives of upper-class African Americans, including those in academe, and his fiction often illustrates how wealthy blacks draw suspicion in posh environs like private beaches or Ivy League campuses.“If it can happen to Henry Louis Gates, possibly the most prominent black scholar in the country, and in his home town, then it can indeed happen to any of us,” Carter, author of The Emperor of Ocean Park, wrote in an e-mail to Inside Higher Ed.“Odd, isn’t it? Here we are in the age of Obama, and some things haven’t changed. Blackness is associated in the public mind with wrongdoing; if we are spotted in an unexpected locale, we must be up to something.”Echoes of Carter’s words could be heard across academe Tuesday, as professors discussed Gates’ assertion that he had been the victim of racial profiling, and recalled their own similar experiences. The story, which had drawn significant media attention by Monday, began early Thursday afternoon when officers responded to a possible break-in at Gates’ Cambridge, Mass. home. Gates had been spotted trying to force open his own jammed door, and when confronted by officers he accused them of racism, drawing a charge of disorderly conduct, according to a police report. Amid public outcry, however, the police dropped the charges, and all those involved – including Gates – called the incident “regrettable and unfortunate” in a joint statement.

Tuesday, July 21, 2009

The City of Cambridge and the Cambridge Police Department have recommended to the Middlesex County District Attorney that the criminal charge against Professor Gates not proceed. Therefore, in the interests of justice, the Middlesex County District Attorney's Office has agreed to enter a nolle prosequi in this matter.

The City of Cambridge, the Cambridge Police Department, and Professor Gates acknowledge that the incident of July 16, 2009 was regrettable and unfortunate. This incident should not be viewed as one that demeans the character and reputation of Professor Gates or the character of the Cambridge Police Department. All parties agree that this is a just resolution to an unfortunate set of circumstances.

Charles Ogletree gives Gates' side of the story in controversial arrest of The Root's editor-in-chief.

Henry Louis Gates Jr. was arrested at his home in Cambridge, Mass. after a white female passerby thought he was breaking into his own house and called police.UPDATE: The disorderly conduct charges against Henry Louis Gates Jr. were dropped on Tuesday.

Statement on Behalf of Henry Louis Gates, Jr. -- by Charles Ogletree

This brief statement is being submitted on behalf of my client, friend, and colleague, Professor Henry Louis Gates, Jr. This is a statement concerning the arrest [1]of Professor Gates. On July 16, 2009, Professor Henry Louis Gates, Jr., 58, the Alphonse Fletcher University Professor of Harvard University, was headed from Logan airport to his home [in] Cambridge after spending a week in China, where he was filming his new PBS documentary entitled “Faces of America.” Professor Gates was driven to his home by a driver for a local car company. Professor Gates attempted to enter his front door, but the door was damaged. Professor Gates then entered his rear door with his key, turned off his alarm, and again attempted to open the front door. With the help of his driver they were able to force the front door open, and then the driver carried Professor Gates’ luggage into his home.Professor Gates immediately called the Harvard Real Estate office to report the damage to his door and requested that it be repaired immediately. As he was talking to the Harvard Real Estate office on his portable phone in his house, he observed a uniformed officer on his front porch. When Professor Gates opened the door, the officer immediately asked him to step outside. Professor Gates remained inside his home and asked the officer why he was there. The officer indicated that he was responding to a 911 call about a breaking and entering in progress at this address. Professor Gates informed the officer that he lived there and was a faculty member at Harvard University. The officer then asked Professor Gates whether he could prove that he lived there and taught at Harvard. Professor Gates said that he could, and turned to walk into his kitchen, where he had left his wallet. The officer followed him. Professor Gates handed both his Harvard University identification and his valid Massachusetts driver’s license to the officer. Both include Professor Gates’ photograph, and the license includes his address.

BOSTON – Prosecutors dropped a disorderly conduct charge Tuesday against prominent black scholar Henry Louis Gates Jr., who was arrested at his home near Harvard University after a report of a break-in.The city of Cambridge issued a statement saying the arrest "was regrettable and unfortunate" and police and Gates agreed that dropping the charge was a just resolution."This incident should not be viewed as one that demeans the character and reputation of professor Gates or the character of the Cambridge Police Department," the statement said.Supporters say Gates — the director of Harvard's W.E.B. Du Bois Institute for African and African American Research — was the victim of racial profiling.Officers responded to the home Gates rents from Harvard after a woman reported seeing "two black males with backpacks on the porch," with one "wedging his shoulder into the door as if he was trying to force entry," according to a police report.Gates' lawyer, fellow Harvard scholar Charles Ogletree, said the professor had returned from a trip overseas with a driver, found his front-door jammed and had to force it open. He was already inside, calling the company that manages the property, when police arrived.

To have a valid release of claims under the Age Discrimination in Employment Act, employers must comply with several technical requirements. Courts consistently have stated that these requirements are ‘strict and unqualified,’ and if an employer fails to meet any of the statutory requirements, the waiver is ‘ineffective as a matter of law.’ Here is an outline of what companies must do to comply. By Bradley T. Adler

In today’s difficult economic times, many employers are carefully assessing their operational structures, particularly the efficiency and expense of their workforce. When revenues are down and expenses remain the same or go up, something has to change. That something has typically has been a dramatic reduction in the workforce. However, many employers are surprised to learn that layoffs can result in significant legal claims by affected employees. A reduction in force is a situation that often serves as the basis for discrimination claims—particularly involving age discrimination—even though the cause of the reductions may be a loss of business, a merger or a consolidation of business operations. When terminating an employee because of a reduction in force, many employers offer severance packages to employees to obtain a waiver of claims. In short, as a part of the layoff, the employer offers an employee some benefit—typically compensation—that the employee otherwise is not entitled to receive. In exchange, the employee is asked to sign a release agreement that waives any claims against the company arising out of his or her employment. Typically there are no specific requirements for such waivers of federal claims. But there is one major exception: claims for age discrimination under the Age Discrimination in Employment Act. To have a valid release of claims under the act, employers must comply with several technical requirements. Courts consistently have stated that these requirements are "strict and unqualified," and if an employer fails to meet any of the statutory requirements, the waiver is "ineffective as a matter of law." The technical requirements are: 1. A written and understandable agreement: The waiver must be part of a written agreement between the individual and the employer that is written in a manner calculated to be understood by the average individual eligible to participate. 2. Reference to the Age Discrimination in Employment Act: The waiver specifically refers to rights or claims arising under the act.

Monday, July 20, 2009

In 1721, as an outbreak of smallpox caused panic in Boston, an African slave spoke up and helped solve the public health crisis.Onesimus informed his master, Cotton Mather, the city’s most powerful man, that Africans of that era stopped the deadly disease from spreading by extracting fluid from the blisters and scratching it into the skin of healthy people, using a thorn.Despite the enormous difference in their social status, Mather listened to his slave and enlisted Dr. Zabdiel Boylston to experiment with the African practice, which was rudimentary but medically sound. Smallpox inoculation was the first major innovation made in Massachusetts with a person of color as prime mover. It was not to be the last.A 2006 study of 60 significant innovations in Massachusetts during the last 400 years found that more than a third involved people of color, women or immigrants. To give a few examples, African Americans participated in a big way in the first pamphlet calling for the total abolition of slavery (David Walker), the invention of the telephone (Lewis Latimer) and the first infant formula (Louise A. Giblin).Launched a year ago, the Commonwealth Compact aims to make the state’s future resemble its innovative past by fostering more diversity in businesses, governments and nonprofits.This spring, the initiative, based at the University of Massachusetts-Boston, published aggregate numbers on the level of diversity up and down the ranks of 111 institutions, which have committed to making their workforces and boards of directors more representative.“We thought we’d get eight or 10 to sign up. We got 111,” says Stephen P. Crosby, dean of the John W. McCormack Graduate School of Policy Studies at UMass-Boston. “This is an unusual initiative. We can’t find anything like this.”Since May, the number of entities that have joined the Commonwealth Compact has grown to 140, including the governments of the city of Boston and the state of Massachusetts. All have volunteered to provide, annually and on a confidential basis, information on their personnel broken down by race and ethnicity. Those data are totaled and also aggregated by industry, then published to provide benchmarks for institutions to measure themselves against competitors and other parts of the state’s economy.“I commend the compact and its research, but time will tell if measurable progress will be made as a result of the compact’s efforts,” says Shirley J. Wilcher, a Mattapan resident who is executive director of the American Association for Affirmative Action. “Improving Boston’s reputation as a ‘welcoming’ city for minorities would be admirable and desirable and, given the changing demographics, just good business.”The first benchmarks, covering about 180,000 employees or 5.5 percent of the state’s labor, may make the workforce appear more diverse than it actually is.Crosby, a co-founder of the compact along with former Suffolk County district attorney Ralph Martin II and Boston Globe Publisher P. Steven Ainsley, acknowledges that the initial participants tend to be predisposed to diversity.Persons of color were reported to comprise 34 percent of all employees and 22 percent of managers and senior executives. In 2008, the U.S. Census Bureau estimated that Hispanics and members of a racial minority made up 20 percent of the state population.“Our goal is to reach at least 1,000 companies so we get representative data,” says Georgianna Meléndez, one of the compact’s three co-directors. The former assistant commissioner of the state Department of Transitional Assistance emphasizes the benchmarks are not intended to be “a shame or blame thing” for participating institutions.A traditional pattern of minorities being concentrated in the lowest-level jobs is reflected in the current, aggregated data. That concentration was greatest in the health care field, a fast-growing part of the state economy. In the lowest-paying health jobs, 55 percent of employees were minorities. At the top end of the employment ladder, minorities accounted for just 12 percent of managers or officers at for-profit companies.“I would be looking for sincere efforts to recruit and a demonstrable commitment from the very top of the member organizations, not only to diversify the entry levels, but the executive suites as well,” says Wilcher, who directed the Office of Federal Contract Compliance Programs during the Clinton administration.

"Media Matters has provided a brilliant analysis of the media's poor coverage of the Sotomayor confirmation hearings, which USHLI would like to share with you. Check out the double standard, the sexism, and the racism. It's an extremely well-done piece of work." Take care.Juan

The news media have been so fixated on the question of whether Sonia Sotomayor's much-distorted "wise Latina" comment was racist, they have missed the real story of this week's confirmation hearings: a pattern of inappropriate comments and double standards that highlight the biases of her critics.

Let's start with the double standard. Countless news reports have -- following the lead of a host of conservatives -- suggested that Sotomayor's vote in the Ricci case, combined with her comments about the effect of background and personal experiences on judicial decision-making, shows that she cannot be impartial. Some have gone so far as to suggest Sotomayor's position on the Ricci case was racist.

Justice Samuel Alito -- a white male of Italian-American ethnicity -- made a comment very similar to Sotomayor's during his confirmation hearings, saying that his ethnicity plays a role in his thinking when he hears cases, particularly discrimination cases. Neither the conservatives who now attack Sotomayor's comments nor the media who go along with the fiction that her comments are remarkable complained about Alito's comments.

But that's not all. The plaintiff in the Ricci case is Frank Ricci, an Italian-American firefighter. Justice Alito, who voted in favor of Ricci, has said that his Italian-American heritage plays a role in his thinking when he hears discrimination cases. Yet reporters ignore that fact when they report on conservative allegations that Sotomayor's background, rather than her reading in the law, determined her vote. Nor do they question why the Republican senators who are so concerned about Sotomayor's Ricci vote are silent on the question of whether Alito's ethnicity played a role in his vote.

That's a clear double standard: A white man who rules in favor of a white man is presumed to have done so based on a neutral reading of the law -- even though he has previously said his ethnicity plays a role in his judicial thinking -- while a Latina is presumed to be unduly influenced by her background.

Then there's Sen. Jeff Sessions' bizarre suggestion that because Sotomayor is of Puerto Rican descent, she should have voted with another 2nd Circuit judge of the same background: "Had you voted with Judge [Jose] Cabranes, himself of Puerto Rican ancestry, had you voted with him, you could've changed that case."

What does Cabranes' "Puerto Rican ancestry" have to do with anything?The news media didn't care, even though the comment came from a senator whose own judicial nomination was scuttled amidst a controversy over his history of racially charged comments. MSNBC's Rachel Maddow brought up Sessions' strange reference to Cabranes' "Puerto Rican ancestry." So did her colleague Ed Schultz -- and on Schultz's show, former Republican congresswoman Susan Molinari agreed "the ancestry of anyone making that decision isn't really pertinent."

But that was it. Save a passing mention in a Washington Post article, Sessions' comment is nowhere to be found in news reports available on Nexis.Finally, there's Sen. Lindsey Graham's overt condescension and his use of what have been described as "sexist" anonymous quotes about Sotomayor.

Even while reporting Graham's question about Sotomayor's temperament based on anonymous quotes about her (a question that came at the end of a day in which Sotomayor had responded to a barrage of hostile GOP questioning without once responding in anger), ABC and NBC neglected to mention that Sotomayor's Court of Appeals colleague, Judge Guido Calabresi, has called the criticism of her temperament "sexist, plain and simple."Several news accounts referred to the Republicans' questioning of Sotomayor as "respectful" and "cordial," overlooking Graham's patronizing comments, including his statement -- after reading the anonymous quotes -- that "maybe these hearings are time for self-reflection." Even Chris Matthews -- himself no stranger to insulting treatment of women and minorities, including Sotomayor -- found Graham's comments "condescending." But most news reports overlooked this aspect of the hearings.

Washington Post reporter Chris Cillizza even included Graham on his list of "winners," praising his "low-key delivery" that proved he is "one of the best questioners/smart legal minds in the Senate." Cillizza didn't mention Graham's condescension -- and didn't mention Sessions' comment about Judge Cabranes' ancestry, either. (Through two days of questioning, Cillizza couldn't think of a single Republican to include among the hearings' "losers," though he found space for four Democrats, none of whom have been accused of making condescending or racially tinged comments.)

Graham began the Sotomayor hearings by noting that, barring a "meltdown," she will be confirmed. Such a meltdown hasn't happened. Like most recent Supreme Court nominees, Sotomayor's comments have been fairly bland and uncontroversial. All the more reason why the media should pay attention to the real story of the week: the double standards and condescending treatment of Sotomayor, by conservatives and by many reporters. You can find other news and actions at www.mediamatters.org

Media Matters for America is a Web-based, not-for-profit, 501(c)(3) progressive research and information center dedicated to comprehensively monitoring, analyzing, and correcting conservative misinformation in the U.S. media. Find out more at our website: www.mediamatters.org

During last week’s Supreme Court confirmation hearings, Republican senators kept bringing the conversation back to 2001 — the year when Sonia Sotomayor delivered the most famous version of her line about how a “wise Latina woman with the richness of her experiences” might outshine a white male judge.It was left to a Democratic senator, Herb Kohl of Wisconsin, to ask about the much more interesting year of 2028.By then, according to recent Supreme Court jurisprudence, some kinds of affirmative action may no longer be permissible. In 2003, writing for the majority in Grutter v. Bollinger, Sandra Day O’Connor upheld race-based discrimination in college admissions ... but only for the current generation. Such policies “must be limited in time,” she wrote, adding that “the Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”It was a characteristic O’Connor move: unmoored from any high constitutional principle but not without a certain political shrewdness. In a nation that aspires to colorblindness, her opinion acknowledged, affirmative action can only be justified if it comes with a statute of limitations. Allowing reverse discrimination in the wake of segregation is one thing. Discriminating in the name of diversity indefinitely is quite another.It’s doubtful, though, that Sonia Sotomayor shares this view.“It is firmly my hope, as it was expressed by Justice O’Connor,” she told Senator Kohl, “that in 25 years, race in our society won’t be needed to be considered in any situation.”But O’Connor didn’t hope; she expected. And Sotomayor’s record suggests that there’s a considerable difference between these postures — that for the nominee, as for most liberal jurists, as long as racial disparities persist, so too must racial preferences.

New York Daily NewsBY Christine Roberts DAILY NEWS WRITERMonday, July 13th 2009, 1:39 PMOlson/GettyBank of America has been accused of gender discrimination practices.

Bank of America is facing legal trouble, yet again.Jamie Goodman, a financial advisor who has worked for Bank of America-ownedMerrill Lynch for 16 years, is suing both companies for allegedly giving larger bonuses to her male counterparts. Goodman filed the class action sexual discrimination lawsuit at the end of June.Goodman claims that Bank of America was aware of Merrill Lynch’s less-than-fair bonus practices, Crain’s Newyorkbusiness.com reports.“When these big firms merge, women are being paid less to stay because their production is lower,” Goodman’s lawyer and partner at the law firm Meites Mulder Mollica & Glink, Shona Glink told Crain’s. “And why is their production lower? Because they’ve been discriminated against by not getting the good partnership opportunities, the big clients, or the large territories. It’s a vicious cycle.”Bank of America has vowed to fight the charges. The company maintains that the Merrill Lynch bonuses were merit-based and distributed without reference to gender.

National Diversity Council founder Dennis Kennedy didn't think it was a good time to establish a Michigan affiliate because of the state's economic distress.But council sponsor Daimler Financial Services Americas L.L.C. and its diversity and community relations manager, Lora Vinande, thought it was exactly the right time. “Diversity and inclusion is something that can't drop off the agenda,” she said. “Now, more than ever, it's important companies remain committed to diversity and inclusion.” In April, the council established its Michigan affiliate, one of just seven in the country so far, joining California, Florida, New York, Ohio, Pennsylvania and Texas. The Michigan Diversity Council hopes to foster a better understanding of the value of diversity and inclusion through monthly events that provide ongoing learning opportunities, discussion and sharing of best practices among the region's companies and diversity professionals. “I see this as another way for community leaders to learn and share their best practices, in addition to being linked into this growing national conversation,” said Vinande, president of the Michigan council's advisory board.

Sunday, July 19, 2009

India, which has historically discouraged colleges from outside the country from setting up operations there, has been moving to change that policy and invite institutions in. But government officials are now saying that such operations would have to abide by strict quotas that specify the number of places for members of disadvantaged castes, The Times of India reported. Such requirements have been much debated in India, and have been questioned by leaders of the top universities, but the system is politically popular. The Times quoted a key official saying: ‘‘All institutions must be inclusive. If any institution has to set up in India then it has to ensure a place for backward castes. There is no compromise on it."http://www.insidehighered.com/news/2009/07/17/qt#203614

WASHINGTON – Highlighting the “devastating impact” of age discrimination, the U.S. Equal Employment Opportunity Commission (EEOC) today held a public hearing on recent developments under the Age Discrimination in Employment Act (ADEA), including the effect on older workers of widespread layoffs, threats to employee benefits, and controversial recent court decisions. The Commission will consider expert panelists’ proposals for regulatory and legislative action, and today issued a technical assistance document on waivers as part of severance agreements.“Whether trying to retain or obtain a job, older workers may find themselves susceptible to unlawful age-based stereotypes and discrimination,” said Acting EEOC Chairman Stuart Ishimaru. “Employers’ conscious or unconscious stereotypes about older workers may cause them to underestimate the contributions of these workers to their organizations. As a result, older workers may be disproportionately selected for layoffs during reductions-in-force. To then make matters worse, evidence suggests that older workers who lose their jobs may have more difficulty finding another job than their younger counterparts, due to age discrimination.”These conclusions were substantiated at the hearing by the testimony of a variety of experts in age discrimination law and policy. The expert panelists testified in detail about the damaging effect of age stereotyping and recent judicial decisions that have curtailed the ability of older workers to successfully challenge age discrimination. These cases include Kentucky Retirement Systems v. EEOC and Gross v. FBL Financial Services, Inc.The experts also proposed – and urged – a variety of potential enforcement and policy solutions to counteract these adverse judicial decisions, such as issuing regulations to fully define the components and burdens of pleading and proof of the reasonable factor other than age defense in the ADEA; developing policy guidance to make uniform the relevance and weight of ageist comments; and using the EEOC’s rulemaking authority under the ADEA to clarify the factors announced by the Supreme Court in the Kentucky Retirement case. They also said that legislative action was essential to ensure that the ADEA was a meaningful enforcement tool.Commissioners pledged to consider the experts’ suggestions and to take steps to provide additional regulatory and policy guidance.Plaintiffs from recent ADEA cases also testified at the hearing, putting a human face on the problem. John Stannard, a plaintiff in Meacham v. KAPL, testified that he believed he was selected for layoff due to “the false stereotype which characterizes older workers as less flexible and critical.” Losing his job after 27 years of excellent work, Stannard said, he found himself “in desperate need of money, [and] took the only job readily available, which was a janitor position at KAPL. I was cleaning the wastebaskets of my former colleagues. . . I was very humiliated.”Ishimaru said witnesses’ experiences demonstrated “first and foremost, the devastating impact that age discrimination can have on a person. What’s more, their experiences underscore that age discrimination is an equal opportunity plague. It is not limited to members of a particular class or a particular race. It is not limited to particular industries or particular regions. And it is not limited to a particular gender.”Panelists included:Professor Michael A. Campion, Professor of Management at Purdue University.Cathy Ventrell-Monsees, President of Workplace Fairness, a non-profit organization dedicated to educating workers about their employment rights; and a veteran employment discrimination attorney.Rae Vann, General Counsel of the Equal Employment Advisory Council and a partner at Norris, Tysse, Lampley & Lakis, LLP.Michael Barnes, John Stannard, and Dennis Halfhill, workers who were the victims of age-based policies and practices.Anna Park, EEOC’s Regional Attorney for the Los Angeles District; and Nancy Edmonds, EEOC Senior Trial Attorney in the Indianapolis District Office, who both have extensive experience litigating ADEA cases.Laurie McCann, a Senior Attorney with the AARP Foundation Litigation Team.Eric Dreiband, a partner at Jones Day, and former EEOC General Counsel.The EEOC’s technical assistance document explains terminated employees’ rights and obligations when offered severance pay in exchange for a waiver of discrimination claims. The EEOC issued the document following a significant spike in age discrimination charges, and amid increased layoffs involving waivers of rights. The document, in straightforward Q&A format, is posted on the EEOC’s website at www.eeoc.gov/policy/docs/qanda_severance-agreements.html.The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. Further information about the EEOC is available on the agency’s web site at www.eeoc.gov.

WASHINGTON – Today, President Barack Obama announced his intent to nominate Jacqueline A. Berrien as Chair of the Equal Employment Opportunity Commission.President Obama said, "Jacqueline Berrien has spent her entire career fighting to give voice to underrepresented communities and protect our most basic rights. Each of us deserves a fair chance to succeed in our workplace and make a contribution to this nation, and I’m confident that Jacqueline’s passion and leadership will ensure that the Equal Employment Opportunity Commission is living up to that mission. I look forward to undertaking this important work with Jacqueline in the months and years ahead."

President Obama announced his intent to nominate the following individual today:Jacqueline A. Berrien, Nominee for Chair of the Equal Employment Opportunity CommissionMs. Berrien has served as Associate Director-Counsel of the NAACP Legal Defense and Educational Fund (LDF) since September 2004. In that position, she assists with the direction and implementation of LDF’s national legal advocacy and scholarship programs. Ms. Berrien served from 2001 to 2004 as a Program Officer in the Ford Foundation’s Peace and Social Justice Program, where she administered more than $13 million of grants to promote greater political participation by underrepresented groups and remove barriers to civic engagement. Prior to joining the Ford Foundation, Ms. Berrien was an Assistant Counsel with LDF and directed the Fund’s voting rights and political participation work. For eight years before that, Ms. Berrien was a staff attorney with the Lawyers' Committee for Civil Rights and the American Civil Liberties Union. Berrien has also taught in trial advocacy programs at Fordham and Harvard law schools and served on the adjunct faculty of New York Law School. She began her legal career clerking for the Honorable U.W. Clemon, the first African-American appointed to the U.S. District Court in Birmingham, Alabama. Ms. Berrien is a graduate of Harvard Law School, where she served as a General Editor of the Harvard Civil Rights-Civil Liberties Law Review. She received her Bachelor of Arts degree with High Honors in Government from Oberlin College and also completed a major in English.

Saturday, July 18, 2009

George W. Bush was all for diversity but he didn't care for the way they did it at the University of Michigan. The Administration had asked the Supreme Court to rule the Michigan system unconstitutional because of the scoring method it used for rating applicants.

"At the undergraduate level," said Bush, "African-American students and some Hispanic students and Native American students receive 20 points out of a maximum of 150, not because of any academic achievement or life experience, but solely because they are African American, Hispanic or Native American." If he had the slightest sense of irony, he might have paused to ask himself, "Wait a minute. How did I get into Yale?" It wasn't because of any academic achievement: his high school record was ordinary. It wasn't because of his life experience — prosperous family, fancy prep school — which was all too familiar at Yale. It wasn't his SAT scores: 566 verbal and 640 math.

They may not have had an explicit point system at Yale in 1964, but Bush clearly got in because of affirmative action. Affirmative action for the son and grandson of alumni. Affirmative action for a member of a politically influential family. Affirmative action for a boy from a fancy prep school. These forms of affirmative action still go on. The Wall Street Journal at the time reported that Harvard accepted 40% of applicants who were children of alumni but only 11% of applicants generally. And this kind of affirmative action made the student body less diverse, not more so.

George W. Bush, in fact, may be the most spectacular affirmative-action success story of all time. Until 1994, when he was 48 years old and got elected Governor of Texas, his life was almost empty of accomplishments. Yet bloodlines and connections had put him into Andover, Yale and Harvard Business School, and even finally provided him with a fortune after years of business disappointments. Intelligence, hard work and the other qualities associated with the concept of merit had almost nothing to do with Bush's life and success up to that point. And yet seven years later he was President of the U.S.

What opponents of affirmative action like Pat Buchanan fail to grasp is that this country was built on affirmative action -- for white males.

Yesterday, on MSNBC, Pat Buchanan attacked Sonia Sotomayor, specifically, and affirmative action, in general. Included in his attack were such claims as "this has been a country built basically by white folks," that Sotomayor was purely an affirmative-action candidate who lacks real credentials and his suggestion that we need more white, male Supreme Court nominees -- like Robert Bork -- despite the fact that 108 of the 110 Supreme Court justices in our nation's history have been white.What opponents of affirmative action like Buchanan fail to grasp is that this country was built on affirmative action -- for white males -- and you don't have to go back to the Founding Fathers to see this in action.If you go back to the 1950s, which Buchanan apparently wants to do, and look at the major private universities, you would find that 20 to 30 percent of the admissions were "legacies" -- people who got there not on merit but because they were the sons of alumni and donors. George W. Bush, of course, is the poster child for this generation of affirmative action babies.I'd like to see Buchanan, or any conservative, defend Bush's admission to Yale on the basis of merit.

Wednesday, July 15, 2009

'We owe [Lit Mitchell] not just our gratitude, but our pledge that we will continue his work.'

NEWARK -- As University of Delaware President Patrick Harker pointed out Tuesday, the university and the late civil rights leader Littleton P. Mitchell "had a history with one another."So it was notable, too, that Mitchell's memorial service was held at UD's Mitchell Hall -- the same hall where Mitchell once was barred as a speaker, the same university that would not admit black students when Mitchell was growing up in Delaware.Mitchell was 90 years old when he died July 6 after an auto accident near his Delaware City home.In the intervening years, Mitchell and UD had more than reconciled. The university awarded its Medal of Merit to Mitchell and his late wife, Jane, a nurse who was a trailblazer in her own right.It was, as Harker underlined, proof of the university's capacity for change. And that capacity "resides in each of us," he said. "We owe him not just our gratitude, but our pledge that we will continue his work."Mitchell's pursuit of justice, his love of life and family, and the call to carry on all were themes that echoed throughout the 2 1/2-hour "Celebration of a Purposeful Life."

A federal judge has issued an injunction barring the Los Angeles Community College District from using parts of its sexual harassment policy, which are being challenged in court as too vague, too broad, and too easy to use to squelch free speech. The judge's ruling came in a suit by Jonathan Lopez, a student charges that his public speaking professor at Los Angeles City College called him a "fascist bastard" for a speech during which the student read a dictionary definition of marriage and two Bible passages. The suit says that the harassment policy helped lead to his ideas being mocked and rejected by his instructor. The district argued in court that no injunction was needed because the student has since received a good grade and the professor was punished, but the court rejected those arguments. Camille A. Goulet, general counsel for the district, issued a statement in which she said that the district hasn't decided whether to appeal. She added that the district "recognizes and respects the difficult balance that often arises in meeting its commitment to providing an environment of academic freedom, as well as an environment that is welcoming and fulfills the mandate to prevent unlawful harassment."

Tuesday, July 14, 2009

The recent Ricci decision is complex. It stretched for approximately 90 pages with a majority opinion, two concurring opinions and a dissent. It’s meanings and ultimate effect will be assessed and argued for months or even years.

Perhaps the most troubling part is Justice Scalia’s concurring opinion. In just three pages,he signals the future, if the court’s majority remains the same. He advocates the elimination of disparate impact cases altogether. Justice Scalia believes that the disparate impact prohibitions in Title VII are unconstitutional and should be struck down.He writes:

Title VII’s disparate-impact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on(because of) those racial outcomes. That type of racial decision making is as the Court explains, discriminatory.

Justice Scalia goes on to state:

Government compulsion of such design would therefore seemingly violate equal protection principles. . . . “[T]he Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.2. . . And of course the purportedly benign motive for the disparate-impact provisions cannot save the statute.”(Emphasis added)

This “individual, not as simply components of a racial, religious, sexual or national class”argument is a subterfuge for eventually eliminating consideration of a broad field of discrimination cases. One would generally have to prove intentional discrimination on an individual-by-individual basis. This would take the law back to the standards of some of the most ridiculous and unfair decisions made by the court.

A good example of how this “individual -- not as a component of a group” standard works is General Electric v. Gilbert (S.Ct. 1976). The Supreme Court ruled that since there were both pregnant and non-pregnant women, it was not the status of being a woman at issue, only the condition of pregnancy. Therefore, pregnancy was NOT a gender-related issue. Each individual must be judged in isolation, not as a component of a group. (Congress fixed this strange “pregnancy is not gender related” decision bypassing the Pregnancy Discrimination Act in 1978).

Under Justice Scalia’s proposed standard, even slavery would probably unchallengeable. There were both African Americans who were slaves and African Americans who were not slaves. Therefore, slavery was not a race-related issue. It was only a situation affecting some people individually.

Justice Scalia’s view would not allow any evidence by a regulatory agency or individual plaintiff regarding statistical disparities. They may play no role in the evidentiary process because “the disparate impact provisions sweep too broadly.”

So, in the slavery case, it would be impermissible to show that multiple other African Americans were slaves or that virtually all slaves were of the given race. It just seems that individuals of one race topped the “selection list” year after year. Looking at the racial composition of the list as a whole would not be allowed. Similarly, pregnancy or a variety of other major group impact issues would simply be eliminated from Title VII considerations. Justice Scalia ends his concurring opinion with a warning:3

The Court’s resolution of these [Ricci] cases makes it unnecessary to resolve these matters today. But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how--and on what terms--to make peace between them.

In Justice Scalia’s view, “peace” seems to be achieved by the unconditional surrender of all disparate impact provisions of the law.

This case was not about the standard argument against “Affirmative Action,” set asides,“points” or special considerations. Ricci was decided as a Title VII disparate impact testing case. Justice Scalia’s opinion goes much further than any debate on whether Affirmative Action efforts are valid; the Ricci court declined to address any such issues.Instead, it attacks the fundamental discrimination laws. The debate over Affirmative Action may become a de minimis issue, as the battle shifts to preserving even the most basic protections against discrimination and a “war” over the heart of the antidiscrimination laws.

Bob Gregg is a member of the faculty of the American Association for Affirmative Action's Professional Development and Training Institutergregg@boardmanlawfirm.com

Ricci v. DeStefano is an example of this approach to dismantling civil rights laws. Alliance for Justice Legal Director Bill Yeomans, an expert in civil rights law who spent decades enforcing civil rights laws with the Department of Justice, provided the following insightful analysis of this important case.

In Ricci v. DeStefano, the five conservatives on the Supreme Court struck a blow against this nation's most effective weapon for eliminating discrimination from our workplaces: the disparate impact standard of Title VII of the Civil Rights Act of 1964. Over the strong dissent of four justices, the conservative majority held that New Haven, CT engaged in intentional discrimination against white firefighters when it rejected the results of tests for firefighter promotions because they disproportionately excluded African American and Hispanic candidates.In 1971, in Griggs v. Duke Power Co., a unanimous Supreme Court held that Title VII prohibited employment practices that had a disparate impact on minorities and were not necessary for the job. In Chief Justice Burger's words, Title VII prohibited "employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups..." Some tests were intentional devices to exclude minorities and women, while others were the result of sloppy employment practices. After Griggs, it was no longer necessary to prove that employers intended to discriminate. The focus was on whether hiring and promotion criteria tested for skills that were necessary to perform the job; no calculus tests for sanitation workers or strength tests for accountants. Griggs launched a generation of progress that uprooted entrenched discrimination and desegregated many of our nation's major police and fire departments.Private plaintiffs, public interest litigators and the Justice Department's Civil Rights Division broke down barriers to minority employment by pursuing litigation and negotiating consent decrees against dozens of states and localities, many of which hired on the basis of legacy, subjective criteria, or flawed employment tests that excluded qualified minority applicants. The result was more professional police and fire departments whose effectiveness increased because they looked more like the communities they served. Chicago, which operated segregated fire houses in 1974, increased African American representation in its fire department from 4% to 20% by 1995. In Los Angeles, the fire department went from 96% white in 1974 to more than 50% nonwhite by 2002, while in Boston minority representation in the firefighting ranks increased from 1% in 1974 to almost 40% by 2000.Don't let these numbers fool you, however. As New Haven's own situation attests, discrimination and lack of minority representation on fire and police squads is still a very real problem. Though New Haven's population is more than 50% nonwhite, minorities only have an 18% representation in leadership roles within the fire department. Only one of 21 fire captains is African American. This disparity is what New Haven was trying to address.Opponents of civil rights enforcement, however, are not concerned with these inequalities and fought from the start to eliminate disparate impact enforcement. They contended falsely that it led to quotas. They won a Pyrrhic victory when the Supreme Court, including Ricci author Justice Anthony Kennedy, severely curtailed the effectiveness of disparate impact lawsuits in Wards Cove Packing Co. v. Atonio. The groundwork for this assault on Title VII was laid in Ronald Reagan's Department of Justice by young anti-civil rights activists, including John Roberts and Samuel Alito. Fortunately, Congress responded by passing the Civil Rights Act of 1991, which incorporated the disparate impact standard into the text of Title VII.The Court's ruling in Ricci is the latest chapter in the efforts of right wing ideologues to subvert the disparate impact standard. The Court created a new standard, stating that the New Haven needed a "substantial basis in evidence" before it could reject the results of a test that had the overwhelming effect of excluding African Americans and Hispanics from promotion as firefighters. In effect, the Court said that the City would have to prove the case against itself and establish that it had committed a disparate impact violation before it could withdraw the test and start over by searching for a less discriminatory alternative. While the obligations of Title VII remain in full effect, the Court's decision is bound to prove to be a disincentive to employers who want to comply voluntarily with Title VII, but don't want to prove that they have violated Title VII.In a striking departure from principles that govern appellate review, the Court reversed the case outright, rather than following its usual practice of sending the case back to the lower courts to apply the facts to the new standard in the first instance. The Court's eagerness to impose its judgment was unseemly.It now falls to the executive branch—through the Department of Justice, Equal Employment Opportunity Commission and Department of Labor—to craft new guidance that will minimize the damage inflicted by the Court's ruling and ensure that Title VII's protections remain robust. Should those efforts come up short, Congress may have to consider whether it must step forward yet again to give force to Chief Justice Burger's simple statement in Griggs that, "[t]he objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees."For more analysis of this term and the impact Sonia Sotomayor could have upon the Supreme Court, please take a look at our in-depth end of term review.

For more than two decades, affirmative action has been under sustained assault. In courts, legislatures, and the media, opponents have condemned it as an unprincipled program of racial and gender preferences that threatens fundamental American values of fairness, equality, and democratic opportunity. Such preferences, they say, are extraordinary departures from prevailing “meritocratic” modes of selection, which they present as both fair and functional: fair, because they treat all candidates as equals; functional, because they are well suited to picking the best candidates.This challenge to affirmative action has met with concerted response. Defenders argue that affirmative action is still needed to rectify continued exclusion and marginalization. And they marshal considerable evidence showing that conventional standards of selection exclude women and people of color, and that people who were excluded in the past do not yet operate on a level playing field. But this response has largely been reactive. Proponents typically treat affirmative action as a crucial but peripheral supplement to an essentially sound framework of selection for jobs and schools.We think it is time to shift the terrain of debate. We need to situate the conversation about race, gender, and affirmative action in a wider account of democratic opportunity by refocusing attention from the contested periphery of the system of selection to its settled core. The present system measures merit through scores on paper-and-pencil tests. But this measure is fundamentally unfair. In the educational setting, it restricts opportunities for many poor and working-class Americans of all colors and genders who could otherwise obtain a better education. In the employment setting, it restricts access based oninadequate predictors of job performance. In short, it is neither fair nor functional in its distribution of opportunities for admission to higher education, entry-level hiring, and job promotion.To be sure, the exclusion experienced by women and people of color is especially revealing of larger patterns. The race- and gender-based exclusions that are the target of current affirmative action policies remain the most visible examples of bias in ostensibly neutral selection processes. Objectionable in themselves, these exclusions also signal the inadequacy of traditional methods of selection for everyone, and the need to rethink how we allocate educational and employment opportunities. And that rethinking is crucial to our capacity to develop productive, fair, and efficient institutions that can meet the challenges of a rapidly changing and increasingly complex marketplace.

Under pressure to land top candidates, recruiters and hiring managers may yield to starting salary demands that touch off wage discrimination claims down the road. By Fay Hansen

A recruiter brings in a highly qualified white male candidate to interview for one of multiple openings in a hard-to-fill position. The candidate negotiates aggressively for a starting salary that exceeds the initial offer, citing a generous total compensation package from his current employer and competing offers from other firms. The new employer caves, meets the candidate’s demands and seals the deal. The employer also hires equally qualified female and black candidates who accept the original starting salary offer without negotiating. This scenario, played out at hundreds of companies where a particular skill set is in short supply, carries the potential for gender- and race-based wage discrimination charges. The risk of charges stemming from starting salary disparities or reaching back to those disparities is rising as the economic downturn deepens, new legislation moves through Congress and the federal enforcement agencies respond to a recent government report that calls for greater scrutiny of pay practices. The current economic downturn sharpened just as the Government Accountability Office released a report in August that strongly recommends greater equal-pay enforcement actions by the Equal Employment Opportunity Commission and the Office of Federal Contract Compliance Programs. Sponsors of several bills pending in Congress seized on the GAO report to renew their calls for the Senate to pass new bills on pay discrimination that have already cleared the House. These bills include provisions that increase penalties for Equal Pay Act violations, prohibit employers from retaliating against employees who share salary information and extend the time frame for filing wage discrimination charges. The extended time frame will facilitate efforts by the enforcement agencies and the courts to reach back into starting salary data for evidence of discrimination. In addition, reinforcing the right to discuss salary information may increase pay comparisons and bring more starting salary disparities to light.

After delaying it three times, the Department of Homeland Security has embraced a regulation that would require all federal contractors to use a government-run electronic employment verification system that has drawn criticism from many employers.Homeland Secretary Janet Napolitano announced on Wednesday, July 8, that the rule would go into effect on September 8. At that point, federal contractors and subcontractors would have to use the government’s E-Verify system to ensure that all employees who work on federal projects are legal.The move is another step in the Obama administration’s effort to crack down on employers to stem illegal immigration. Last week, the homeland department announced that it would conduct audits of I-9 forms at 652 companies, an increase from 503 inspections in the previous fiscal year.Napolitano also rescinded a regulation, first proposed by the George W. Bush administration, that could have led to employers firing workers whose name and Social Security numbers on earnings reports don’t match information in the Social Security database. That rule had been tied up in court proceedings.In another immigration development on Wednesday, the Senate approved an amendment to a homeland department appropriations bill that would codify the federal contractor E-Verify mandate and make E-Verify a permanent program.E-Verify authorization runs out at the end of September. In June, the House approved the homeland funding bill with a two-year extension. The Senate bill has a three-year reauthorization.The Senate amendment, sponsored by Sen. Jeff Sessions, R-Alabama, may not survive House-Senate negotiations on the homeland appropriations bill because similar language is not included in the House measure.Meanwhile, a federal court in Maryland is considering a lawsuit filed by business groups who assert that the DHS has overstepped its legal authority in promulgating the federal contractor rule.

President Barack Obama on Monday nominated Dr. Regina Benjamin, a family physician and Xavier University of Louisiana alumna, to be the next Surgeon General.

Benjamin, 52, is founder of the Bayou La Batre Rural Health Clinic, which serves the poor, uninsured and other underserved patients in Mobile County, Ala.

Benjamin gained acclaim for her determination to rebuild her clinic after hurricanes George in 1998 and Katrina in 2005 shuttered the building. In 2006, a fire destroyed Benjamin's clinic just after flood damage was repaired. During this period, Benjamin, who often administers medical services to her patients for free, and her staff operated the clinic from a Federal Emergency Management Agency trailer.

Benjamin received a bachelor’s degree in 1979 from Xavier University, a historically Black institution known for its ability to place its students in medical school. She received medical degrees from the Morehouse School of Medicine and the University of Alabama, Birmingham. She also holds a master's degree in business administration from Tulane University.

The only real suspense in the confirmation hearings for Supreme Court nominee Sonia Sotomayor is whether the Republican Party will persist in tying its fortunes to an anachronistic claim of white male exceptionalism and privilege.Republicans' outrage, both real and feigned, at Sotomayor's musings about how her identity as a "wise Latina" might affect her judicial decisions is based on a flawed assumption: that whiteness and maleness are not themselves facets of a distinct identity. Being white and male is seen instead as a neutral condition, the natural order of things. Any "identity" -- black, brown, female, gay, whatever -- has to be judged against this supposedly "objective" standard.Thus it is irrelevant if Justice Samuel A. Alito Jr. talks about the impact of his background as the son of Italian immigrants on his rulings -- as he did at his confirmation hearings -- but unforgivable for Sotomayor to mention that her Puerto Rican family history might be relevant to her work. Thus it is possible for Sen. Jeff Sessions (R-Ala.) to say with a straight face that heritage and experience can have no bearing on a judge's work, as he posited in his opening remarks yesterday, apparently believing that the white male justices he has voted to confirm were somehow devoid of heritage and bereft of experience.The whole point of Sotomayor's much-maligned "wise Latina" speech was that everyone has a unique personal history -- and that this history has to be acknowledged before it can be overcome. Denying the fact of identity makes us vulnerable to its most pernicious effects. This seems self-evident. I don't see how a political party that refuses to accept this basic principle of diversity can hope to prosper, given that soon there will be no racial or ethnic majority in this country.Yet the Republican Party line assumes a white male neutrality against which Sotomayor's "difference" will be judged. Sessions was accusatory in quoting Sotomayor as saying, in a speech years ago, that "I willingly accept that we who judge must not deny the differences resulting from experience and heritage, but attempt . . . continuously to judge when those opinions, sympathies and prejudices are appropriate."This is supposed to be a controversial statement? Only, I suppose, if you assume that there are judges who have no opinions, sympathies or prejudices -- or, perhaps, that the opinions, sympathies and prejudices of the first Hispanic nominee to the Supreme Court are somehow especially problematic.There is, after all, a context in which these confirmation hearings take place: The nation continues to take major steps toward fulfilling the promise of its noblest ideals. Barack Obama is our first African American president. Sonia Sotomayor would be only the third woman, and the third member of a minority group, to serve on the nation's highest court. Aside from these exceptions, the White House and the Supreme Court have been exclusively occupied by white men -- who, come to think of it, are also members of a minority group, though they certainly haven't seen themselves that way.

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